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Old July 19, 2014, 02:44 PM   #1
gvf
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What is the Usual Charge if Self-Defense by Lethal Means is Not Upheld by Authorities

I.E., If I claimed I killed a man by reason of Self-Defense and the Police Investigation find my claim is not justified: what will I usually be Charged with if there is any Charge that could be said to be "Usual".

I should give an example: I almost have a horrible car accident and by luck the accident is avoided but I'm very shaky and jumpy. I resume my drive to a friend's party. It's after dark. I park on the only spot available near his house,
5 min walk. While walking I see another man approaching from the opposite direction. He's walking faster than usual. As he nears he puts his hand in his pocket and begins to draw something out. I think I see the butt of a gun and draw and shoot him. He begins to stagger and fall, but convinced he still may attack I shoot 5 more times, hitting him each time in the torso. He's dead.

Police arrive and find a cell-phone, not a gun, in the pocket he reached into. It's large and square and looks nothing like a gun. Neighbors who witnessed this are the ones who called 911. I didn't. They called to report a murder. They saw nothing the man was doing except walking by. They said they often saw him walking. His family says he walked partly for exercise and a bit uptempo but not fast.Neighbors agree it wasn't a fast walk.

Autopsy shows my first shot went into a major artery and he was incapable of continuing the attack. When asked about the first shot I agree he stopped and began to fall and his bare hand came out of his pocket.

So, the Police find the killing not justified by SD. Or even close to it.

What am I charged with? Murder, Criminally Negligent Homicide? I think the latter though is death by negligence that was not intended but happened out of one's negligent actions. This death I intended or at least intended to stop him even if it meant he died in the process. I therefore intended to stop him by any means possible including killing him.

What do you think would be the usual Charge? If there is one.

Last edited by gvf; July 19, 2014 at 02:50 PM.
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Old July 19, 2014, 03:00 PM   #2
gunlaw
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Most likley 2nd degree murder
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Old July 19, 2014, 03:02 PM   #3
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In Michigan, you'd be charged with Open Murder and it would be left up to the jury to determine which of the lesser included offenses you're guilty of (or if you're lucky..not guilty of). Here, and under those facts, the self defense standard is basically did you have an honest belief that you're life was in danger, and was that belief a reasonable one in the juries opinion.
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Old July 19, 2014, 03:36 PM   #4
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My guess is that the charge would be manslaughther.

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Old July 19, 2014, 04:01 PM   #5
Kleanbore
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Pure speculation.

But I cannot imagine giving the benefit of the doubt to anyone who said that he had seen a man who was walking on a sidewalk at night reach into his pocket, said he "thought he saw the butt of a gun, and resorted to deadly force.

What could have possessed the defendant to so react? The fact that the victim was coming toward the defendant? Because the defendant said that he thought the victim was "walking faster than usual", whatever that means?

People pass each other on foot all the time.

I think the defendant's goose would be cooked.

Based on the scenario described, I would expect charges for whatever the jurisdiction at hand would consider the most serious kind of crime short of premeditated murder or some kinds of crimes with special circumstances. Lay opinion.

Worried about a shadowy figure? Cross the street.
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Old July 19, 2014, 05:12 PM   #6
lemaymiami
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I'm not a lawyer... but when I was a cop I was on both sides of shooting incidents (one when I was the shooter - quite a few that involved the general public -and one or two that involved my own men...).

Basically the facts of the case or circumstances involved determined the level of charging in a homicide. If, and this is a big IF, the facts supported the shooter (justified or excusable homicide)... no one was charged -but all of that comes after the fact. The real key to whether an individual is charged for a killing is that folks who weren't there at the time (investigating team, then the state's attorney...) will review all the known evidence and make a charging decision.

The lowest level of charge in a killing is manslaughter -doing something dangerous with wilful disregard for the consequences and as a result there's a death... Examples of this can be as simple diriving drunk and killing someone or losing your temper and firing shots in public resulting in a death - whether you intended it or not... or were aiming at the individual who was killed... This is a gross simplification but this is the way we were taught years ago at the police academy that I attended... You don't need a firearm or any weapon to be charged with manslaughter just a clearly negligent act and a death resulting...

The next level of charging is usually second degree homicide where someone was killed but the perpetrator didn't intend to kill or didn't plan the act...

The final level is first degree homicide where there's clear evidence of cold blooded pre-planned murder (and if you kill someone while committing another felony it's still first degree whether you planned the killing or not...).

I'm sure there are plenty of lawyers around who will correct me here or there but this is the understanding I operated under on the street for many years. I can tell you from personal experience that waiting to find out whether your shooting is "justified" or not isn't much fun at all... I wouldn't recommend it to anyone.
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Old July 19, 2014, 07:10 PM   #7
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Actions....

I'm not sure how a minor TA(traffic accident) would factor into your using lethal force on a possible aggressor(robber-mugger).
If you draw & fire at anyone, you'd need to explain your acts or justify why you decided to use the firearm. Shooting 5 more times after the subject was down could be construed as malice or be used to show your violent/aggressive nature. See OK vs England.
England was a OK City drug store owner who was convicted for shooting a young robber multiple times.

If you just shot the passer-by once & then contacted LE, you might get a manslaughter charge but by shooting the victim again or shooting multiple times, that could make a case for murder-one or "first degree homicide". You(the gun owner) knew the victim was not a mugger/thug, you repeatedly shot him, then you didn't contact 911 or render any aid.

I'm not a JD or a prosecutor so I can't say exactly what charges would occur, but from what was posted, I think murder charges would stick.
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Old July 19, 2014, 08:38 PM   #8
Frank Ettin
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Quote:
Originally Posted by gvf
I.E., If I claimed I killed a man by reason of Self-Defense and the Police Investigation find my claim is not justified: what will I usually be Charged with if there is any Charge that could be said to be "Usual"....
Let's start by having a look at the various types of "homicide."
  1. "Homicide" is simply the killing of one person by another. So let's examine how the law looks at "homicide."

    1. "Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.

    2. A homicide can be --

      1. Accidental;

      2. Negligent;

      3. The result of reckless (or willful, wanton and reckless) conduct;

      4. Intentional without malice (evil intent);

      5. Intentional with malice; and

      6. Intentional, premeditated and with malice.

    3. An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.

    4. A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.

    5. Homicides (3) - (6) are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.

    6. The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.

    7. If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.

    8. Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.

  2. Now let's look at the basic legal reality of the use of force in self defense.

    1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

      1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

      2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

      3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.

    2. The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

      1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

        1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

        2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and

        3. put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

      2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

      3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

      4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

      5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

    3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

      1. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

      2. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

      3. Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

        1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

        2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

        3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

        4. It could also be another matter if you left the safety of your house to confront someone on your property.

    4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

  3. Since the maintenance man here apparently intentionally shot three people, two of whom died, his actions satisfy the elements of the crimes of manslaughter (at least) and aggravated assault (although different jurisdictions might give those crimes different names.

    1. If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing, prima facie, his legal justification.

    2. Maybe the evidence, once reviewed, will be sufficient to exonerate him at an early stage. Or maybe it will be up to a jury to decide.

    3. But anyone who uses violence against another human, even if he claims self defense, will need to go through the process until it can be decided that the use of force was legally justified.

  4. Often a failure to establish justification will result in a conviction for voluntary manslaughter.

    1. Emotional stress will often negate malice and thus takes murder off the table. Emotional stress could come from provocation insufficient to reasonably justify a response with lethal force, a genuine but unreasonable fear, surprise (finding your spouse in flagrante delicto with someone), etc.

    2. Sometimes something like a delay or re-engagement could be found to add the element of malice necessary for a conviction of murder, e. g., such as in the Ersland case.

    3. Whether or not a defendant acted with malice is generally a jury question. So in most cases, however, the charge will be murder. The jury will be then usually have the option to convict of voluntary manslaughter as a less included offense if it finds criminal culpability but no malice.
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Old July 19, 2014, 08:39 PM   #9
gvf
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Quote:
Originally Posted by BobWright View Post
My guess is that the charge would be manslaughther.

Bob Wright
But isn't Manslaughter an intention to harm but not kill? Like a fight, you intend to hit the guy but he falls backward and cracks his skull on the sidewalk and dies. You only intended to hit him.

In SD your intention is stop by any means including killing. It's intentional.
And if no SD is found, Manslaughter cannot be the Charge.

Right?

Right?
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Old July 19, 2014, 08:47 PM   #10
gvf
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Quote:
Originally Posted by Frank Ettin View Post
Let's start by having a look at the various types of "homicide."
  1. "Homicide" is simply the killing of one person by another. So let's examine how the law looks at "homicide."

    1. "Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.

    2. A homicide can be --

      1. Accidental;

      2. Negligent;

      3. The result of reckless (or willful, wanton and reckless) conduct;

      4. Intentional without malice (evil intent);

      5. Intentional with malice; and

      6. Intentional, premeditated and with malice.

    3. An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.

    4. A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.

    5. Homicides (3) - (6) are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.

    6. The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.

    7. If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.

    8. Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.

  2. Now let's look at the basic legal reality of the use of force in self defense.

    1. Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

      1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

      2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

      3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.

    2. The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

      1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

        1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

        2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and

        3. put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

      2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

      3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

      4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

      5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

    3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

      1. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

      2. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

      3. Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

        1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

        2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

        3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

        4. It could also be another matter if you left the safety of your house to confront someone on your property.

    4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

  3. Since the maintenance man here apparently intentionally shot three people, two of whom died, his actions satisfy the elements of the crimes of manslaughter (at least) and aggravated assault (although different jurisdictions might give those crimes different names.

    1. If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing, prima facie, his legal justification.

    2. Maybe the evidence, once reviewed, will be sufficient to exonerate him at an early stage. Or maybe it will be up to a jury to decide.

    3. But anyone who uses violence against another human, even if he claims self defense, will need to go through the process until it can be decided that the use of force was legally justified.

  4. Often a failure to establish justification will result in a conviction for voluntary manslaughter.

    1. Emotional stress will often negate malice and thus takes murder off the table. Emotional stress could come from provocation insufficient to reasonably justify a response with lethal force, a genuine but unreasonable fear, surprise (finding your spouse in flagrante delicto with someone), etc.

    2. Sometimes something like a delay or re-engagement could be found to add the element of malice necessary for a conviction of murder, e. g., such as in the Ersland case.

    3. Whether or not a defendant acted with malice is generally a jury question. So in most cases, however, the charge will be murder. The jury will be then usually have the option to convict of voluntary manslaughter as a less included offense if it finds criminal culpability but no malice.
Great exposition! Much thanks.

I don't quite know based on it where my example would lie: in my state perhaps Murder II (Murder I is for killing Police or for particularly heinous Murder), the latter though is only my belief, I'm not sure of that. I am sure it is the Charge for killing Police.

I think any Manslaughter must be unintentional, the intention being to harm and a killing the unintended result of the harm. Like I said in an earlier post, a punch that ends up throwing another off backwards where he hits his head on the sidewalk and dies. If I'm correct about that, that definition would not fit my example.

A real case of claimed SD which which was found to be Murder II happened a number of years ago in my area. Briefly, in a mall in daytime, there was a disagreement over which driver in which car was entitled to an empty parking space in a crowded parking lot. One was white and a new CCW, had just gotten it, and was screaming at the other driver and acting hysterical, and one was a minority. The latter left his car and began walking to the other car and driver. His wife said her husband had said in a tired voice that he better talk-down the other driver because he was acting nuts about a minor mater. Multiple witnesses reported he was not acting aggressively and began walking a distance away from the other car and driver. As soon as he get out of his car and began walking, the CCW drew, began firing out of his window and hit the other man multiple times, killing him instantly. It was found the dead man had his wife and baby in the car. He was a physician. The CCW told Police the man being a minority and walking to him he believed he would be attacked and didn't trust or like minorities to begin with. He was Charged with 2nd Degree Murder and convicted of that Charge in a Jury Trial. He was given a prison sentence of 20 years, something like that. When he would become eligible for Parole I don't remember.

Last edited by gvf; July 19, 2014 at 09:24 PM.
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Old July 19, 2014, 08:47 PM   #11
Frank Ettin
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Quote:
Originally Posted by gvf
But isn't Manslaughter an intention to harm but not kill? Like a fight, you intend to hit the guy but he falls backward and cracks his skull on the sidewalk and dies...
No. See my post above.

Note also;
  1. In self defense, the intent is not to kill. It is to stop. Sufficient force to stop might result in death, but death is never the actual intended result.

  2. However, use of a degree of force reasonably likely to cause death or grave bodily injury, which force actually results in death, is sufficient intend to support a conviction for voluntary manslaughter or murder, depending on the state of mind found by the jury.
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Old July 20, 2014, 07:18 AM   #12
gvf
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Quote:
Originally Posted by Frank Ettin View Post
No. See my post above.

Note also;
  1. In self defense, the intent is not to kill. It is to stop. Sufficient force to stop might result in death, but death is never the actual intended result.

  2. However, use of a degree of force reasonably likely to cause death or grave bodily injury, which force actually results in death, is sufficient intend to support a conviction for voluntary manslaughter or murder, depending on the state of mind found by the jury.
Well, by definition of most SD Law you are using Lethal Means, which must include the intent to have a lethal result if necessary. The mere fact of shooting someone mid-torso or hitting them over the head with a nearby tree branch, using a knife to try to stab him in his guts, the immediate intent is to cause lethal injury and the overall intent is to stop the attack. I would think Manslaughter didn't really fit the bill for there the resulting death is completely unintended. In fact, if an SD killing was Manslaughter it would never be able to be Murder, they are mutually exclusive regarding intent and I know Murder is the Charge more than a few times and has ended in Conviction.

Confusing area though. It may all be a call by the DA depending on the circumstances, though personally Manslaughter seems to fail to describe the event to me.

Last edited by gvf; July 20, 2014 at 12:28 PM.
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Old July 20, 2014, 08:39 AM   #13
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Expounding on Mr. Ettin's excellent summation, being as this event went down on public property, there is nothing in the OP that a reasonable person would or could find to be out of the ordinary in the behavior of the deceased. You have used what some would describe as your license to kill, only to discover the license is invalid under the circumstances.

If, however, this had occurred on private property posted either by signage or by law, and preferably your private property or property upon which you had permission to legally be, the matter may have concluded in your favor.
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Old July 20, 2014, 08:48 AM   #14
lemaymiami
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Thanks Frank... your remarks are far clearer than my poor effort.

Anyone not clear on this whole topic is well advised to study on it a bit -long before the day when you reach for a gun instead of a telephone....
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Old July 20, 2014, 08:52 AM   #15
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Quote:
Posted by gun_with_a_view: If, however, this had occurred on private property posted either by signage or by law, and preferably your private property or property upon which you had permission to legally be, the matter may have concluded in your favor.
What would make you believe that for a moment?

The shooter in this hypothetical scenario certainly had the right to be where he was.

The decedent had also been lawfully present at the scene.

But even if the latter had not been true--say, had the decedent been trespassing, knowingly or otherwise--that fact would most certainly have not given the shooter any justification to either threaten or use deadly force.

Private property? The property owner can ask a trespasser to leave. In a few states he can use on-deadly physical force to try to make him leave.

But that's about it.
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Old July 20, 2014, 09:33 AM   #16
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*Murder 1st
**Murder 2nd degree
If the victim was a different race add some type of hate crime
Illegal possession of firearm (you did not say you had a conceal carry permit)

Possible Federal charge for violating victim’s civil rights.

*As the D.A. I reserve the right to upgrade the charge to Murder 1st after I read your social media sites (facebook, linked-in, discussion forums), hate groups you belong too, comments you have made to others, etc. Since you have discussed this previously on THR I would charge you with Murder 1st.

**Murder 2nd if I could not find any evidence of the factors I listed in Murder 1st
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Old July 20, 2014, 10:41 AM   #17
Frank Ettin
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Quote:
Originally Posted by gvf
...by definition of most SD Law you are using Lethal Means, which must include the intent have a lethal result if necessary...
This is absolutely not true.

Self defense is a justification for using force against someone else to prevent him from intentionally touching you in a harmful or offensive way. Only the degree of force necessary to accomplish that purpose can be justified.

So if someone is simply pushing you around, you may be legally justified in committing a battery (yourself intentionally touching him in a harmful or offensive way) to stop that, but using a degree of force not reasonably likely to cause him serious injury, e. g. you could swat his hands away from you. You could not justify using lethal force.

Only if he escalates the fray and begins using lethal force, e. g., he picks up a knife and manifests the intent to immediately attack you with it, could you justify a use of lethal force in response.

Quote:
Originally Posted by gvf
...I would think Manslaughter didn't really fit the bill for there the resulting death is completely unintended...
How would you know? When were you admitted to the Bar? On what bases do you make that statement? Can you cite some actual law on the issue?

Quote:
Originally Posted by gvf
...if an SD killing was Manslaughter it would never be able to be Murder, they are mutually exclusive regarding intent...
They are not mutually exclusive as to intent. They reflect the same intent. They involve different states of mind.
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Last edited by Frank Ettin; July 20, 2014 at 11:03 AM. Reason: correct typo
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Old July 20, 2014, 10:58 AM   #18
Kleanbore
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Good points, Frank. I missed the first one, and could not figure out what the poster was trying to say on the others.
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Old July 20, 2014, 11:18 AM   #19
Carl N. Brown
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The Sanford PD incident report on the shooting of Trayvon Martin by George Zimmerman lists the offense as being investigated as "Homicide -- Negligent Manslaughter -- unnecessary killing to prevent unlawful act" with UCR code 090C. I suspect a lot of adjudicated self defense killings are investigated initially as suspected manslaughter (as are a lot of adjudicated murders).

So if a reasonable person (prosecutor, grand jury, trial jury) would not feel it was reasonable to fear death or greivious bodily harm, homicide to prevent an unlawful act would be Negligent Manslaughter under Florida 782.11. IIRC.

Your state laws and court precedents not only will differ but they will change over time as cases are adjudicated and establish case law.
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Old July 20, 2014, 11:49 AM   #20
Onward Allusion
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Quote:
5 min walk. While walking I see another man approaching from the opposite direction. He's walking faster than usual. As he nears he puts his hand in his pocket and begins to draw something out. I think I see the butt of a gun and draw and shoot him. He begins to stagger and fall, but convinced he still may attack I shoot 5 more times, hitting him each time in the torso. He's dead.
<SIGH> I would hope that you would end up in prison for a bit because you would be a complete freaking moron for doing something like that. Yeah, some kind of murder charge or at the very least some kind of manslaughter charge.

BTW, you guys are too nice.
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Old July 20, 2014, 12:59 PM   #21
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Quote:
Posted by Carl N. Brown: So if a reasonable person (prosecutor, grand jury, trial jury) would not feel it was reasonable to fear death or greivious bodily harm, homicide to prevent an unlawful act would be Negligent Manslaughter under Florida 782.11. IIRC.
Says nothing about the hypothetical case at hand, even if it were to take place in FL.
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Old July 20, 2014, 01:09 PM   #22
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The OP's goose is cooked in this scenario. He's mentally defective enough to be on a banned list for gun ownership/purchase IMHO. Good thing this is just a scenario on an internet message board.
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Old July 20, 2014, 01:12 PM   #23
gvf
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Quote:
Originally Posted by Frank Ettin View Post
This is absolutely not true.

Self defense is a justification for using force against someone else to prevent him from intentionally touching you in a harmful or offensive way. Only the degree of force necessary to accomplish that purpose can be justified.

So if someone is simply pushing you around, you may be legally justified in committing a battery (yourself intentionally touching him in a harmful or offensive way) to stop that, but using a degree of force not reasonably likely to cause him serious injury, e. g. you could swat his hands away from you. You could not justify using lethal force.

Only if he escalates the fray and begins using lethal force, e. g., he picks up a knife and manifests the intent to immediately attack you with it, could you justify a use of lethal force in response.

How would you know? When were you admitted to the Bar? On what bases do you make that statement? Can you cite some actual law on the issue?

They are not mutually exclusive as to intent. They reflect the same intent. They involve different states of mind.
Just stating my opinion, based on my State's Law, in the end we all are just giving opinions. In each case a Court will decide if the Charge is justified.

My opinion is based on New York Penal Codes Definition of each, Manslaughter and Murder. The First I quoted verbatim from the Penal Code, Manslaughter. For the latter, Murder, I quoted Find Law's more succinct statement of the Penal Code's, which is so long no one would read. If you want it yourself just search under "murder + new york penal code"

MANSLAUGHTER:

"Penal


§ 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the
death of such person or of a third person under circumstances which do
not constitute murder because he acts under the influence of extreme
emotional disturbance, as defined in paragraph (a) of subdivision one of
section 125.25. The fact that homicide was committed under the influence
of extreme emotional disturbance constitutes a mitigating circumstance
reducing murder to manslaughter in the first degree and need not be
proved in any prosecution initiated under this subdivision; or
3. He commits upon a female pregnant for more than twenty-four weeks
an abortional act which causes her death, unless such abortional act is
justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical
injury to a person less than eleven years old, the defendant recklessly
engages in conduct which creates a grave risk of serious physical injury
to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.



Penal


§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death,
unless such abortional act is justifiable pursuant to subdivision three
of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony."
---------------------------------------------------------------------

MURDER

http://statelaws.findlaw.com/new-yor...rder-laws.html

"Overview of New York Second Degree Murder Laws

Under New York criminal law, murder in the second degree is one of several forms of homicide, or conduct which causes the death of a person. Other forms of homicide include first-degree murder, manslaughter, criminally negligent homicide, and abortion. Pursuant to the statute, a person commits second-degree murder in one of five ways: (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person; (2) under circumstances demonstrating a "depraved indifference to human life," the defendant "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person"; (3) acting alone or in concert with others, the defendant commits or attempts to commit a specified felony (including robbery, burglary, kidnapping, arson, rape, and sexual abuse) and, in the course of and in furtherance of such crime or of immediate flight therefrom, he or she causes the death of a non-participant; (4) under circumstances demonstrating a "depraved indifference to human life," a defendant 18 years old or more "recklessly engages in conduct which creates a grave risk of serious physical injury or death" to a person less than 11 years old and causes the death of such person; or (5) while in the course of committing a specified crime such as rape, a criminal sexual act or sexual abuse, a defendant 18 years old or more intentionally causes the death of a person less than 14 years old.

The second type of second-degree murder listed above - "depraved indifference" murder - is a form of reckless homicide. To convict a defendant for second-degree depraved indifference murder, the prosecution must prove - in addition to the defendant's creation of a "grave risk of death" to another person - two distinct mens reas, or mental states: recklessness, and a "depraved indifference to human life." Convictions for depraved indifference murder have become increasingly rare, and often involve conduct creating danger to a group of people rather than a single individual.
-----------------------------------------------------------------------

The difference in relation to Intent is this:

MANSLAUGHTER:

" 1. With intent to cause serious physical injury to another person, he
causes the death of such person or of a third person;"

MURDER: ": (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person;"

In my words, Manslaughter: intention to cause serious injury and instead a death results.


Murder: intention to cause death which indeed does cause death.

Is this proof of what I say? no it's what I base my opinion on. That's all. Fine with me if you have another or your area has another.

The means used in Lethal Self-Defense are Lethal so their is an intent to cause death if that is necessary to stop the attack, the over-all intent. You're explanation I believe treats the two, Lethal Means and Stopping an Attack as oppositional. "You are not doing this, you are doing that."

But they are inclusive, the second including the first: "You are Stopping an Attack by causing the death of the attacker [if there is no other way]. Your intent to stop the attack includes the intent to cause death [if necessary].

If it was Manslaughter it would mean you were trying to cause physical injury grave enough to stop a lethal attack but that is all, just injury. No more. So you would be aiming at the attacker's lower leg or foot - or lower arm and hand, and your hand jerked and you hit him mistakenly in mid-torso causing death.

Or you meant to knock him out with the tree branch only giving a glancing blow, but his fall caused his fractured skull and brain-hemorrhage resulting in death.

But we know this is not the case. We use lethal actions. We aim for mid-torso with the gun or mid-skull with the branch.

This is my view.

Last edited by gvf; July 20, 2014 at 02:08 PM.
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Old July 20, 2014, 01:40 PM   #24
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Lessee....gfv, do you seriously believe that you would ever convince the triers of fact that your intent in having shot someone several times with a firearm had been only to cause injury, and not death?

Quote:
...you were trying to cause physical injury grave enough to stop a lethal attack but that is all, just injury. No more.
With a firearm? Come now.

Quote:
So you would be aiming at the attacker's lower leg or foot - or lower arm and hand, and your hand jerked and you hit him mistakenly in mid-torso causing death.
Two things:
  1. The State's expert witnesses would certainly testify that a victim who had actually been faced with an imminent threat of death or serious injury would not have the opportunity to aim precisely, and that qualified trainers do not teach tryng to do that; and
  2. a shot to a leg artery can be expected to cause death more quickly than many shots to mid-torso.
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Old July 20, 2014, 01:49 PM   #25
Frank Ettin
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Quote:
Originally Posted by gvf
Just stating my opinion, based on my State's Law, in the end we all are just giving opinions. In each case a Court will decide if the Charge is justified.

My opinion is based on New York Penal Codes Definition of each, Manslaughter and Murder. The First I quoted verbatim from the Penal Code, Manslaughter. For the latter, Murder, I quoted Find Law's more succinct statement of the Penal Code's, which is so long no one would read. ...
And all that tracks quite well with my post outlining the basic law on the subject. Specific statutes and case laws adds detail and shading, but the foundational principles are as I described.
  • Note for example the first clause of §125.20:
    Quote:
    A person is guilty of manslaughter in the first degree when:

    1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or...
    And compare it with my statement in post 11:
    Quote:
    Originally Posted by Frank Ettin
    ...use of a degree of force reasonably likely to cause death or grave bodily injury, which force actually results in death, is sufficient intend to support a conviction for voluntary manslaughter...
  • Note also, in the second clause of §125.20:
    Quote:
    ...The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter...
    And compare it with my statement in post 8:
    Quote:
    Originally Posted by Frank Ettin
    ...Emotional stress will often negate malice and thus takes murder off the table....
  • And nothing in the New York statutes you cited supports your contentions that (post 10):
    Quote:
    Originally Posted by gvf
    ...I think any Manslaughter must be unintentional, the intention being to harm and a killing the unintended result of the harm...
    or (post 12)
    Quote:
    Originally Posted by gvf
    ...I would think Manslaughter didn't really fit the bill for there the resulting death is completely unintended...
    or (post 23):
    Quote:
    Originally Posted by gvf
    ...The difference in relation to Intent is this:

    MANSLAUGHTER:

    " 1. With intent to cause serious physical injury to another person, he
    causes the death of such person or of a third person;"

    MURDER: ": (1) with the intent to cause the death of another person, he or she causes the death of such person or a third person;"

    In my words, Manslaughter: intention to cause serious injury and instead a death results.


    Murder: intention to cause death which indeed does cause death...
    Those assertions are based on an incorrect reading of §125.20. Let's take another look at that statute (emphasis added):
    Quote:
    § 125.20 Manslaughter in the first degree.

    A person is guilty of manslaughter in the first degree when:
    1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

    2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance...

Note also that all opinions are not equal. A opinion of someone with specialized education, training and experience in a field is one thing. An opinion of someone without such professional qualifications is quite another.
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